JUDGMENT : S. Acharya, J. - The Petitioner stands convicted u/s 16(1)(a) of the Food Adulteration Act, 1954 (hereinafter referred to as the 'Act') and has been sentenced thereunder to undergo R.I. for six months and to pay a fine of Rs. 1000/- (one thousand). In default to undergo R.I. for 2 months more. 2. The Petitioner and his father had an ice candy factory in Bolangir town. The prosecution case, in short, is that on 3-6-1975 at about 10 a.m., P.W. 1, the Food Inspector, Bolangir, inspected the said factory and there found some ice-candies exposed for sale for human consumption. He suspected the said ice candies to be adulterated, and so he purchased 900 grams of ice candy from the Petitioner by paying him Re. 1/- and obtained a receipt from him for the said payment. Thereafter P.W. 1 served a notice (Ext. 2) on the Petitioner of his intention to get the said ice-candy analysed by the Public Analyst. He then divided the ice-candy into 3 equal parts, packed each part separately in dry clean bottles, and added 24 drops of formaline (40%) as preservative in each bottle. He then labelled and sealed the bottles in the presence of witnesses and handed over one of the said bottles to the Petitioner and sent another bottle to the Public Analyst. The third bottle was retained by him which was produced in Court. On receipt of the report of the Public Analyst stating that the said ice-candy was adulterated, P.W. 1 served a copy of that report on the Petitioner, and after getting sanction for prosecution from the proper authority he submitted the prosecution report to prosecute the Petitioner and his father u/s 16(1)(a) of the Act. 3. The case put forward by the Petitioner's father, that he was not present at the time of the alleged purchase of ice-candy by P.W. 1 and he was absolutely ignorant of the alleged seizure of the ice-candy, was accepted by the Courts below and be was acquitted of the charge framed against him. The Petitioner admitted that he was the owner of the ice-candy factory but he denied that P.W. 1 visited his said factory on 3-6-1975 or that be purchased the ice-candy from the 11 Petitioner as alleged by him. 4. The Petitioner admitted that he was the owner of the ice-candy factory but he denied that P.W. 1 visited his said factory on 3-6-1975 or that be purchased the ice-candy from the 11 Petitioner as alleged by him. 4. Both the Courts below on their own appreciation of the evidence on record have found the Petitioner guilty u/s 16(1)(a) of the Act and have convicted and sentenced him as stated above. 5. It is urged by Mr. Patnaik, the learned Counsel for the Petitioner, that the conviction of the Petitioner, cannot be upheld as the mandatory provisions of Section 10(7) of the Act and expected normal manner of seizure have not at all been followed which create grave doubt about the genuineness of P.W. 1's action and belittle the findings arrived at on such seizure including the report of the Public Anaylist, which is the basis for the conviction of the Petitioner. 6. Sub-section (7) of Section 10 of the Act is as follows: 10. Powers of Food Inspectors: xx xx xx (7) Where the Food Inspector takes any action under Clause (a) of Sub-section (1), Sub-section (2), Sub-section (4) or Sub-section (6), he shall call one or more persons to be present at the time when such action is taken and take his or their signatures. The provisions contained in this Sub-section have been made to safeguard people against likely abuses of the wide powers vested in the Food Inspectors in such matters. The word "shall" in that Sub-section indicates that the legislature intends that the provisions made therein should be complied with. In Shri Ram Labhaya Vs. Municipal Corporation of Delhi and Another, their Lordships have held as follows: There can be no doubt that one or more persons must mean one or more independent persons. The legislative history of Sub-section (7) further shows that at the least, the Food Inspector ought to try and secure the presence of one or more independent persons when he takes action under any of the provisions mentioned In the Sub-section. Prior to its amendment by Act XLIX of 1964, Sub-section (7) ran thus: Where the Food Inspector takes any action under Clause (a) of Sub-section (1)...he shall, as far as possible, call not less than two persons to be present at the time when such action is taken and take their signatures. Prior to its amendment by Act XLIX of 1964, Sub-section (7) ran thus: Where the Food Inspector takes any action under Clause (a) of Sub-section (1)...he shall, as far as possible, call not less than two persons to be present at the time when such action is taken and take their signatures. By the amendment of 1964, the words as far as possible were deleted. This deletion naturally lends plausibility to the contention that the provisions of Section 10(7) are mandatory. In Ram Sarup Tara Chand Convict Vs. The State their Lordships have said: We are of the opinion, particularly in view of the legislative history of Section 10(7), that while taking action under any of the provisions mentioned in the Sub-section, the Food Inspector must call one or more independent persons to be present at the time when such action is taken. In this connection the decision reported in Sitaram Thirani Vs. State of Orissa may also be seen. Their Lordships of the Supreme Court of course did not agree with the view that mere non-presence of one or more independent persons at the relevant time, even when their presence was not a possibility, would vitiate the trial or conviction. At the same time their Lordships have observed that u/s 10(7) the Food Inspector is obliged to call wherever possible one or more persons to be present when he takes action u/s 10 of the Act. The provision of Section 10(7) of the Act is not an idle formality, and, therefore, the Food inspector in all such cases must not only call one or more such persons to be present when he takes action u/s 10 of the Act, but also obtain their signature at the spot in the reports, receipts and other documents drawn up by him at the time of taking action u/s 10(7). Therefore, the prosecution, in order to establish that the seizure of the toad stuff was done in the manner prescribed under the law, must show by adducing convincing evidence that the above peremptory formalities were followed or could not be followed due to certain reasons. All that is necessary to ensure genuineness of the purpose and purity of the action. 7. In this case only 2 witnesses have been examined for the prosecution. P.W. 1 is the Food Inspector. All that is necessary to ensure genuineness of the purpose and purity of the action. 7. In this case only 2 witnesses have been examined for the prosecution. P.W. 1 is the Food Inspector. He in his deposition has nowhere stated that he took the samples in question and seized the same in the presence of any other witness. He has merely stated in his examination-in-chief that he labelled and sealed the bottles in which he kept the seized ice-candy in the presence of the witnesses and the vendor. There is nothing in his deposition to show that all his previous acts, viz., purchase of the ice-candy from the Petitioner, the service of the notice of P.W. 1's intention to get the said ice-candy examined by the Public Analyst, his act of dividing the said ice-candy into 3 equal parts and packing the same in 3 bottles and sealing those 3 bottles as alleged by him, were done in the presence of any independent witness. P.W. 1 has not stated that P.W. 2, the only other witness in this case, was present at the time when he took action u/s 10 of the Act. P.W. 2 has merely stated that he was present in the ice-candy factory when P.W. 1 went to that place, and that he did not know anything except that he signed on some papers given to him by P.W. 1. P.W. 1 has also not said if any of the documents which were prepared at the time of the purchase, seizure and packing of the ice-candy by P.W. 1 was signed by P.W. 1 or any other witness. On Exts. 1 and 2 the name of one Sidheswar Naik has been written. P.W. 1 does not say that the said writings are the signatures of P.W. 2. P.W. 2 also was not asked if the said writings were his signatures. There is no other Independent evidence to show that the provisions of Section 10(7) of the Act were at all followed by P.W. 1 at the time of the alleged seizure of the ice-candy from the factory of the Petitioner. That is a serious lacuna in the prosecution case. There is no other Independent evidence to show that the provisions of Section 10(7) of the Act were at all followed by P.W. 1 at the time of the alleged seizure of the ice-candy from the factory of the Petitioner. That is a serious lacuna in the prosecution case. A reading of the prosecution evidence clearly shows that P.W. 1 was either ignorant of the provisions of Section 10(7) or he acted in a rash manner ignoring these provisions, which gives rise to suspicion against his act. 8. Apart from the above short-comings, P.W. 1 has admitted in his cross-examination that the bottle from which formaline was taken and added to the samples of the ice-candy in the three bottles was not labelled. As that was so, P.W. 1 should have said as to how he was confident that the said bottle contained formaline and nothing else. Again in his cross-examination he could not say when the 3 bottles in which the ice-candy samples were kept were cleaned and where the same had been kept before P.W. 1 used the same for the above purpose. 9. In view of the fact that the provisions of Section 10(7) of the Act were not followed by P.W. 1 at the time of his taking action u/s 10 of the Act, and In view of the other deficiencies in the prosecution evidence, it becomes difficult for me to hold that the prosecution has been able to prove the charge against the accused beyond all reasonable doubt. That being so, the Petitioner is entitled to the benefit of doubt, and on that account his conviction and the sentence passed against him in this case are liable to be and are hereby set aside, and he is acquitted of the charge against him. 10. It has to be noted that both P.W. 1 and the prosecution agency acted in a negligent and perfunctory manner in performing their respective jobs in connection with this case. 11. The revision accordingly is allowed. Final Result : Allowed